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HIGH COURT ISSUES GRAMMAR-BASED RULING

[Posted May 4, 2009]Grammar geeks rejoice!Today the highest court in the land issues a ruling that’s right up your alley.For those of you who know when to use that and when to use which, and who would never confuse precipitous for precipitate, today’s ruling from the Supreme Court of the United States in Flores-Figueroa v. US is a dream come true.

Here’s the sentence that gets parsed today:“Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.”That’s the prohibition in 18 USC §1028A for aggravated identity theft.Flores-Figueroa used his own name but a made-up Social Security Number to construct a fake ID.By chance, the SSN belonged to a real person, so he got charged with violating this federal statute.

In his defense, the would-be identity thief claimed that he, too, may have been a victim – of plain old bad luck.He said the government didn’t prove that he knew that the SSN belonged to someone else.And in fact, no such evidence had been offered at trial.In response, the government argued that the word knowingly in the statute modified the verbs in the sentence (“transfers, possesses, or uses”) and not the direct objects (“a means of identification of another person”).That is, if Flores-Figueroa intentionally faked an ID and it turned out to be a real SSN, then he was in violation of the statute.

The district court went along with the government, as did the Eighth Circuit.Today the Supreme Court reverses, based on good ol’ rules of grammar.Behold the following language, crafted by Mr. Justice Breyer:

“In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence. Thus, if a bank official says, ‘Smith knowingly transferred the funds to his brother’s account,’ we would normally understand the bank official’s statement as telling us that Smith knew the account was his brother’s.”

There’s more:The Court turns to the mean streets of elementary school for some illustrative examples:

“Similar examples abound. If a child knowingly takes a toy that belongs to his sibling, we assume that the child not only knows that he is taking something, but that heal so knows that what he is taking is a toy and that the toy belongs to his sibling. If we say that someone knowingly ate a sandwich with cheese, we normally assume that the person knew both that he was eating a sandwich and that it contained cheese. Or consider the Government’s own example, ‘John knowingly discarded the homework of his sister.’ Brief for United States 9. The Government rightly points out that this sentence ‘does not necessarily’ imply that John knew whom the homework belonged to. Ibid. (emphasis added). But that is what the sentence, as ordinarily used, does imply.”

What, you weren’t paying attention back in junior high school when they taught traditional grammar?Shame on you!If Flores-Figueroa had been as irresponsible as you were, he’d be in federal prison right now.But as of today, he walks.See?Grammar can occasionally save your life – or at least your liberty, as today’s ruling illustrates.